Requested Jury Instruction Must Be Given On “Every Material Question” (California)

A requested jury instruction must be given on every material question "upon which there is any evidence deserving of any consideration whatever . . . . The fact that the evidence may not be of a character to inspire belief does not authorize the refusal of an instruction based thereon. . . . However incredible the testimony of a defendant may be he is entitled to an instruction based upon the hypothesis that it is entirely true." (People v. Burns (1948) 88 Cal.App.2d 867, 871, 200 P.2d 134.) Contrariwise, an accurate instruction may be refused if there is no evidence to which it may properly relate. (See People v. Haag (1954) 127 Cal.App.2d 93, 97, 273 P.2d 328.)

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Chapter 250: Defenses And Defense Theories: General Issues
250.1 - Grounds For Instruction On Defense Theory
250.4.2 - Defendant's Right To Directly Relate The Defense Theory To Prosecution's Burden
The Shellow Instructions
Defense Theory
Forecite California™
PG X(C)(3.1) - Failure To Instruct On Defense: General Instruction On Element Of Charge Is Insufficient

Replaying Of Video Tape During Deliberations: Recording Should Be Played In Open Court To Avoid Undue Emphasis (Wisconsin)

Replaying a videotaped statement which was admitted at trial during deliberations essentially “allow[s] a live witness to testify a second time in the jury room.” State v. Anderson, 2006 WI 77, P30, 291 Wis. 2d 673, 717 N.W.2d 74 (2006). Therefore, when the jury requests that a videotape be replayed it should be in open court to allow the judge to guide the jurors, with the assistance of counsel, so that no part of the recording is overemphasized relative to the testimony given from the witness stand. Id. at ¶ 30. “. . . [A]llowing the jury essentially unrestricted access to the victim's and defendant's videotaped statements creates the possibility for mischief and the jury placing undue emphasis upon certain evidence.” Magee v. Smith, (E.D. Wis., No. 09-C-750, Feb. 24, 2010).

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25.9.6 - Video Recordings
276.4 - Replaying Recordings During Deliberations
284.1.16 - Readback: Replaying Of Video Or Audio Tapes
284.1.17 - Replaying Of Video Tape As Prejudicial
The Shellow Instructions
Tapes And Transcripts
Forecite California™
G VII(C)(43) - Right To Confrontation: Hearsay Testimony—Crawford Update

Sample Instruction: Aider And Abettor

To determine whether a defendant aided or abetted the commission of a crime with which he is charged, ask yourself these questions. Did he participate in the crime as charged as something he wished to bring about? Did he knowingly and willfully associate himself with the criminal venture? Did he seek by his actions to make the criminal venture succeed? If he did, then the defendant is an aider and abettor and therefore guilty of  the offense. If, on the other hand, your answer to any one of these questions is no, then the defendant is not an aider and abettor and you must find him not guilty.

Source: Given in Waller v. United States, (N.D. Ohio, No. 1:08-CV-936,(1:04-CR-13),  Feb. 26, 2010).

For subscription based briefing and sample instructions on this and related issues see:

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Chapter 64: Accomplice Liability (Aiding And Abetting, Accessory Before The Fact, Etc.)
The Shellow Instructions
Aiding And Abetting
Forecite California™
F 3.01 - Aiding and Abetting
F 3.02 - Aider and Abettor Liability
Calcrim 400 - Aiding And Abetting, Inchoate, And Accessorial Crimes

Right To Defense Theory Instruction (11th Circuit)

"A defendant 'is entitled to have presented instructions relating to a theory of defense for which there is any foundation in the evidence, even though the evidence may  be weak, insufficient, inconsistent, or of doubtful credibility.'" United States v. Palma, 511 F.3d 1311, 1315 (11th Cir.), cert. denied, 129 S. Ct. 215, 172 L. Ed. 2d 161 (2008) (quoting United States v. Lively, 803 F.2d 1124, 1126 (11th Cir. 1986)). "In determining whether there is a proper evidentiary foundation for the instruction, the evidence must be viewed in the light most favorable to the accused." Id.

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Chapter 250: Defenses And Defense Theories: General Issues
250.1 - Grounds For Instruction On Defense Theory
250.4.2 - Defendant's Right To Directly Relate The Defense Theory To Prosecution's Burden
The Shellow Instructions
Defense Theory
Forecite California™
PG X(C)(3.1) - Failure To Instruct On Defense: General Instruction On Element Of Charge Is Insufficient

Sample Instruction: Plea Bargained Testimony Of Accomplice Should Be Weighed With “Caution” And “Great Care” (10th Circuit)

You should receive this type of testimony with caution and weigh it with great care" since it is the product of a "plea agreement with Mr. Gonzales, providing a possible recommendation of a lesser sentence than he would otherwise likely receive.

Source: Quoted with approval in United States v. Garcia, 596 F.3d 788, 796 (10th Cir. Okla., No. 08-5090, 2010).

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19.4.2 - Jury Not To Consider The Guilty Plea Of An Accomplice Or Codefendant
25.7 - Witness Or Informant Receiving Benefit From Prosecution
26.2.3 - Witness Who Has Entered Guilty Plea: Limited Purpose Instruction
The Shellow Instructions
Accomplice Witness, With Immunity
Witness Credibility: Immunity And Immunized Witnesses
Witness Bias: Leniency For Testimony
Forecite California™
F 334 Inst 4 - Jury Must Treat Accomplice Testimony With Greater Care and Caution Than Ordinary Witness
F 373 Inst 6 - Unjoined Accomplice Testifying Under Grant Of Immunity Or Plea Bargain

Use Of Concrete Examples In Jury Instructions (3rd Circuit)

The following passage from United State v. Delle Donna, (3d Cir. N.J., No. 08-4433, No. 08-4434, 2010) [NOTICE: This opinion is UNPUBLISHED] suggests that the careful use of specific examples in jury instructions may be permissible: “Though a district court should be careful when including specific examples in jury instructions, such a use of examples is not inherently questionable. Quite to the contrary, it may be useful when attempting to explain legal issues to jurors to use concrete examples. After all, the Supreme Court has indicated that ‘[i]n charging the jury, the trial judge is not limited to instructions of an abstract sort. It is within his province, whenever he thinks it necessary, to assist the jury in arriving at a just conclusion by explaining and commenting upon the evidence [or] by drawing their attention to the part of it which he thinks important.’ Quercia v. United States, 289 U.S. 466, 469, 53 S.Ct. 698, 699, 77 L. Ed. 1321 (1933).”

Jury Instructions May Constitute A Constructive Amendment Of The Indictment (4th Circuit)

"When the government, through its presentation of evidence and/or its argument, or the district court, through its instructions to the jury, or both, broadens the bases for conviction beyond those charged in the indictment, a constructive amendment--sometimes referred to as a fatal variance--occurs." United States v. Randall, 171 F.3d 195, 203 (4th Cir. 1999). "A constructive amendment is a fatal variance because the indictment is altered 'to change the elements of the offense charged, such that the defendant is actually convicted of a crime other than that charged in the indictment.'" Id. (quoting United States v. Schnabel, 939 F.2d 197, 203 (4th Cir. 1991)). "Thus, a constructive amendment violates the Fifth Amendment right to be indicted by a grand jury, is error per se, and must be corrected on appeal even when the defendant did not preserve the issue by objection." Id.

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3.2.1 - Province Of The Court To Interpret Statute And Apply It To The Facts
251.2.1.4 - Alibi: Time Of Offense ("On Or About") Instruction Improper When Defendant Relies On Alibi
300.2.4 - Due Process/Notice: Variance Between Information And Proof At Trial
300.2.5 - Due Process/Notice: Variance Between Indictment/Information And Proof At Trial -- Standard Of Prejudice
Forecite California™
PG VI(C)(4.3) - Failure To Object To Instruction As Ineffective Assistance Of Counsel
PG VII(C)(11) - Instruction On Uncharged Theory Violates Due Process And Right to Effective Assistance of Counsel: Preliminary Hearing Is Touchstone Of Due Process
PG VII(C)(11.1) - Due Process Notice: Variance Between Information And Proof At Trial CG 6.1 Due Process And Notice—Generally

Dual Role Witnesses: Instructions Should Provide “Clear Demarcation” Between A Witness’s Lay And Expert Roles (4th Circuit)

United States v. Baptiste, 596 F.3d 214, 225 ( 4th Cir. Md., No. 07-4493, 2010) concluded that the judge “should take steps to ensure that there is a clear demarcation in the jury's mind between a witness's lay and expert roles. This may be accomplished, for example, by cautionary warnings or instructions, by requiring the witness to take separate trips to the stand in each capacity, or by ensuring that counsel makes clear when he is eliciting lay versus expert testimony. While the means of ensuring the demarcation between the lay and expert roles of the witness lie within the discretion of the district court, jurors should be made to understand that they may not give the witness's lay testimony additional weight simply because of his dual-role as an expert.”

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29.2 - Instruction On Expert Testimony
30.1 - Lay Or Nonexpert Opinion Testimony
The Shellow Instructions
Expert Witnesses
Forecite California™
F 2.80 - Expert Testimony
F 332 - Expert Witness Testimony
F 333 - Opinion Testimony Of Lay Witness

Jurors Should Not Be Instructed To Check Their Life Experiences At The Door (9th Circuit)

In Taylor v. Sisto, (9th Cir. 5/25/2010, No. 09-15341) the Ninth Circuit considered a  federal habeas corpus petition which raised the question of whether the trial judge’s preinstruction to the jury that each juror disregard his or her own life experience deprived appellant of his Sixth and Fourteenth Amendment right to trial by an impartial jury. The trial judge instructed prospective jurors to put their biases and prejudices into a metaphorical "box" at the doorway of the courtroom, in essence to shed their life experiences while acting as jurors:

". . . take all the decisions that your have made, all the opinions you have about how people act, how people behave, what kind of people behave in what way, what makes them do that, and you leave them in that box . . . take all of the experiences that you have had that have contributed to how you think about everything that you think about [and] lay those experiences aside." Slip opn. p. 9.

The Ninth Circuit held that: "The instruction, in context created a pool of prospective jurors who were seeking to strip themselves of part of what made them human."  Slip opn p. 12. Accordingly, the instruction violated a series of U.S. Supreme Court holdings concerning the nature of trial by an impartial jury under the Sixth Amendment. Notably, "the essential feature of a jury . . . lies in the interposition between the accused and his accuser of the common-sense judgment of a group of laymen." (Citing Williams v. Florida, 399 U.S. 78, 99 (1970).) As in Williams, the error in preinstructing the jury to discard their knowledge here was fundamental and fatal. The court analyzed several Supreme Court jury pool cases and held that "[t]he holdings of the Supreme Court confirm that an impartial jury is one that applies common sense informed by the full range of human experience. The ‘box’ instruction . . . instructed the jury to abandon that experience." Slip opn p. 18.

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10.1 - Jury Selection: Procedural Issues
10.2.10 - Voir Dire: Prospective Jurors Must Be Truthful Regarding Racial Bias
276.5 - Jury Reliance On Common Sense

The Shellow Instructions
10.  Jurors May Rely On Common Knowledge And Experiences
11.  Jurors Are To Decide Case Fairly And Impartially

Forecite California™
F 105.1 - Jurors Duty To Judge Credibility Of Witnesses
F 315.1.1 Inst 11 - Improper To Define Jurors Duties In Terms Of Deciding The Truth Based Only On Their Common Sense And Experience

The Walking Dictionary Myth: Part 2

There is often a disconnect between what courts assume about lay jurors’ understanding of common instructional terms and what the jurors actually do understand.  (See this post; see also "The 'Walking Dictionary' Myth") Thus it is not uncommon for jurors to independently consult a dictionary to defined terms which are left undefined in the instructions. (Ibid.) 

Rutland v. State, (Miss. Ct. App., No. 2008-KA-01544-COA,  Feb. 16, 2010) comes close to suggesting that jurors should be allowed to consult a dictionary. After the judge refused a juror request to explain the difference between “abuse” and “neglect” the jury resorted to a dictionary definition of the terms. The reviewing court concluded that the defendant's juror misconduct“issue is without merit” because (1) “a standard dictionary is less likely [than a law dictionary] to improperly instruct the jury . . .” and (2) “the dictionary definition of the two words is clearly something within the collective knowledge and common intelligence of any jury.”  Based on this reasoning it could be argued that the jurors should be permitted to consult dictionaries since the definitions therein necessarily reflect the “common knowledge" of any jury.

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3.2.6 - Duty To Define Terms With Specialized/Technical Meaning; No Duty To Define Common Terms
16.6.2 - Improper Use Of Dictionary, Reference, Reading Or Research Materials
272.3.4 - Is Summation/Closing Argument That Jury Should Utilize Common Dictionary Meaning Of A Term
272.3.5 - Admonition Regarding Improper Summation/Closing Argument On Term Contained In Instructions But Not Defined
276.3.3 - Deliberations: Materials In Juryroom--Jury Not To Refer To Dictionary Or Other Outside Sources
Forecite California™
CALCRIM Article Bank # CCA-003: The Jury Instruction Corner – The "Walking Dictionary" Myth
F 1.00n - Counsel’s Argument That Jury Should Utilize Common Dictionary Meaning Of A Term
F 101.9 Inst 1 - Walking Dictionary Myth
F 101.5 Inst 1 (a-c) - Jurors Are Not Walking Dictionaries
PG V(B)(1.6) - Requested Instructions: Right To Request Instruction Defining Common Terms; Non-Technical Terms
PG V(B)(1.7)  - Jurors Not Permitted To Consult Dictionary

Kansas Conviction Reversed For Failure To Instruct On Elements Of The Predicate Offense (Kansas)

In State v. Richardson, 224 P.3d 553, 558-559 (Kan., No. 98,572,  February 19, 2010) the defendant was charged with eluding a police officer based on five or more “moving violations.”  The state conceded that the judge erroneously failed to instruct the jurors on the specific moving violations and their elements.  The Kansas Supreme Court held under the standard of review set forth in Neder v. U.S. (1999) 527 US 1:

Under this standard, a reviewing court "asks whether the record contains evidence that could rationally lead to a contrary finding with respect to the omitted element." Neder, 527 U.S. at 19. Although an appellate court may review the record in a criminal prosecution and determine whether the evidence supports a jury's specific factual findings, harmless error analysis does not allow the court to speculate with legal finality which of a wide range of conduct, some legal and some illegal, a jury elected to consider moving violations.

This court cannot know whether the jury found that Richardson committed at least five moving violations, since they were not identified or defined to the jury, and we do not know which specific acts the jury deemed to be moving violations. It may be that the jury included speeding violations that are excluded from the list of moving violations compiled by the Kansas Department of Revenue. It may also be that the jury included acts that are not even statutory infractions, such as being in an intersection when a traffic light is yellow.

We will not step into the shoes of the jurors and convict Richardson of five moving violations of our choice--the jury did not make the necessary determination of guilt beyond a reasonable doubt on all the elements of the crime charged. The failure to provide the jury with instructions specifying and defining at least five underlying moving violations as elements of the fleeing or attempting to elude crime charged against Richardson constitutes clear error, and we reverse the conviction of felony fleeing or attempting to elude a police officer.

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Chapter 58: Predicate Crimes
Forecite California™
F 2.50b - Uncharged Criminal Acts: Proof Of Preliminary Facts
F 2.001 n1 - Evidence Dependent Upon Proof Of A Preliminary Fact: General Note
F 3500.3.2 - Predicate Acts

Presumption That Jurors Follow Cautionary Instructions Defeated By Confusing Instruction

In State v. Matusovic, (Minn. Ct. App.,  No. A09-485, Feb. 16, 2010)  [NOTICE: This opinion is UNPUBLISHED] the reviewing court considered, inter alia, whether a cautionary instruction on uncharged crimes limited the prejudicial impact of the evidence.  The court held that the instruction was inadequate: “Finally, the district court's cautionary instructions were confusing and likely ineffective. Although the court properly advised the jury that the Spreigl evidence served only a limited purpose and that it was not to be used to infer guilt or propensity, the court erred in instructing the jury that it could consider the evidence for the purpose of determining identity, which was not at issue. And that was the only purpose for which the jury was advised that it could consider the evidence. Thus, while the jury generally is presumed to heed cautionary instructions, Clark, 755 N.W.2d at 261, the district court's misdirection may have undermined the effectiveness of the instruction in this case.”

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4.3.2 - Cautionary And Limiting Instructions: Requests And Objections
5.1.6 - Empirical Challenge To Confusing Jury Instruction Language
Forecite California™
PG VI(C)(1.1) - A Cautionary Or Limiting Instruction Should Not Be Given Over A Tactical Objection By The Party Benefits From The Instruction
PG X(E)(19)(1) - Inability Of Limiting Instructions To Cure Error
PG X(E)(19)(1.1) - Inability Of Limiting Instructions To Cure Evidentiary Error
PG X(E)(19)(2) - Cautionary/Limiting Instructions May Emphasize The Prejudicial Matter
PG X(E)(19)(3) - Defendant Should Decide Whether Cautionary/Limiting Instruction Is Given

Instruction On Lesser Included Offense Of Second Degree Murder Is Not Mandatory In A First Degree Murder Prosecution (Michigan)

In People v. Davis, (Mich. Ct. App., No. 287476 , Feb. 18, 2010)  [NOTICE: This opinion is UNPUBLISHED] the defendant argued on appeal that the judge erroneously instructed on second degree murder under the belief that such instruction was mandatory where first degree murder is charged.  The reviewing court agreed that “the trial court erred to the extent that it stated that a lesser offense instruction on second-degree murder was mandatory. In People v Cornell, 466 Mich 335, 358 n 13; 646 NW2d 127 (2002), our Supreme Court overruled People v Jenkins, 395 Mich 440; 236 NW2d 503 (1975), and held that a lesser offense instruction on second-degree murder is not automatically required where a defendant has been charged with first-degree murder.”  Nevertheless, the conviction was affirmed because under the evidence presented the second degree murder instruction was warranted. 

APPELLATE PRACTICE NOTE: In Davis the defendant was convicted of the lesser offense of second degree murder so if the judge had erroneously instructed on that lesser offense the error would necessarily have been prejudicial because the jury’s conviction of the lesser offense may have been a compromise verdict.   Similarly, if the judge erroneously instructs on an unwarranted greater offense the error is prejudicial due to the danger of a compromise verdict.

For example in Price v. Georgia (1970) 398 US 323 [90 SCt 1757; 26 LEd2d 300], the Supreme Court reversed the defendant's conviction for voluntary manslaughter because he had improperly been tried for first degree murder. The court reasoned: "Further, and perhaps of more importance, we cannot determine whether or not the murder charge against petitioner induced the jury to find him guilty of the less serious offense of voluntary manslaughter rather than to continue to debate his innocence. [Citation.]" Id.at 331.)

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Chapter 265: Lesser Included Offenses: General Principles
The Shellow Instructions
Lesser Included Offense/Other Offense
Forecite California™
PG X(J)(7) - Standard Of Prejudice: Failure To Instruct On LIO—Conviction Of Greater Offense Does Not Cure Error In Failing To Instruct On Lesser Offense
LIO I - Determining LIO
LIO II - Duty to Instruct

Is Making Drugs And Alcohol Available “Administration” For Purposes Of Unlawful Sexual Intercourse? (Massachusetts)

In Commonwealth v. LeBlanc, 456 Mass. 135 (Mass., No. SJC-10459, February 18,  2010) the reviewing court considered whether simply making drugs or alcohol available constitutes the administration of drugs or alcohol within the meaning of the unlawful sexual intercourse statute.  The Court concluded that if the legislature intended the term “administer” to include making the drugs or alcohol available they would have used the term “provide” instead of administer.  Hence, the “drugging” instruction erroneously stated that the prosecution need only prove that the defendant “gave or provided” drugs to the victim.  Moreover, the Court held that the error was prejudicial “because the instruction misinterpreted key words ‘which are the basis of criminal liability under the statute. In these circumstances, we cannot say with confidence that the error was unlikely to have affected the jury's deliberations’ on whether the defendant was guilty of drugging a person for unlawful sexual intercourse. [Citations.]”  Commonwealth v. LeBlanc, 456 Mass. 135, 144 (Mass., No. SJC-10459, February 18,  2010).

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The Shellow Instructions
Drugs, Controlled Substances
Forecite California™
F 10.02 n2 - Sex Offenses: Definition Of “Administer”
F 12.07a - Controlled Substances: Administer-Defined

Sample Instruction: Proof Beyond A Reasonable Doubt Is “More Powerful” Than The Civil Standard Of Proof

The government has the burden of proving the defendant guilty beyond a reasonable doubt. Some of you may have served as jurors in civil cases, where you were told that it is only necessary to prove that a fact is more likely true than not true. In criminal cases, the government's proof must be more powerful than that. It must be beyond a reasonable doubt. Proof beyond a reasonable doubt is proof that leaves you firmly convinced of the defendant's guilt. There are very few things in this world that we know with absolute certainty, and in criminal cases the law does not require proof that overcomes every possible doubt. If, based on your consideration of the evidence, you are firmly convinced that the defendant is guilty of the crime charged, you should find him guilty. If on the other hand, you think there is a real possibility that he is not guilty, you should give him the benefit of the doubt and find him not guilty.

Source: Via v. State, 2010 Ind. App. Unpub. LEXIS 194, 7-8 (Ind. Ct. App., No. 32A01-0904-CR-198, Feb. 17, 2010) MEMORANDUM DECISION [“trial court did not abuse its discretion” in giving this instruction].

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Chapter 270: Burdens And Standards Of Proof
270.5.13 - Chart: Survey Of 50 State’s Reasonable Doubt Definitions
The Shellow Instructions
Reasonable Doubt
Forecite California™
F 2.90 - Reasonable Doubt
F 2.90 n1 - Whether “Beyond Reasonable Doubt” Should Be Defined